(PC) Dupree, Jr. v. Horn et al, No. 1:2023cv00086 - Document 10 (E.D. Cal. 2023)
Court Description: FINDINGS and RECOMMENDATIONS, Recommending That This Case be Dismissed, Without Prejudice, for Plaintiff's Failure to Comply with Court Order re: 1 Complaint, signed by Magistrate Judge Gary S. Austin on 5/19/2023. Referred to Judge Thurston; Objections to F&R due on or before 6/9/2023. (Rivera, O)
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(PC) Dupree, Jr. v. Horn et al Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JOSE DUPREE, JR., 12 Plaintiff, 13 vs. 14 15 1:23-cv-00086-JLT-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER HORN, et al., Defendants. 16 OBJECTIONS DUE ON OR BEFORE JUNE 9, 2023 17 18 I. BACKGROUND 19 Richard Jose Dupree, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil 20 rights action pursuant to 42 U.S.C. § 1983. On March 31, 2023, the Court issued an order 21 requiring Plaintiff to pay the $420.00 filing fee in full for this action within thirty days. (ECF 22 No. 9.) The thirty-day time period has elapsed and Plaintiff has not paid the filing fee or 23 otherwise responded to the order. 24 II. FAILURE TO COMPLY WITH COURT’S ORDER 25 In determining whether to dismiss this action for failure to comply with the directives set 26 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 27 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 28 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 1 Dockets.Justia.com 1 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 2 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 3 “The public’s interest in expeditious resolution of litigation always favors dismissal,” id. 4 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action 5 has been pending since January 11, 2023. Plaintiff’s failure to respond to the Court’s order may 6 reflect Plaintiff’s disinterest in prosecuting this case or his inability to pay the filing fee. In either 7 case, the Court cannot continue to expend its scarce resources assisting a litigant who will not or 8 cannot resolve the payment of the filing fee for his lawsuit. Thus, both the first and second 9 factors weigh in favor of dismissal. 10 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 11 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 12 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 13 is Plaintiff’s failure to pay the filing fee for his case that is causing delay. Therefore, the third 14 factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, at this stage in the proceedings there is little 16 available to the Court which would constitute a satisfactory lesser sanction while protecting the 17 Court from further unnecessary expenditure of its scarce resources. Plaintiff is a state prisoner 18 proceeding pro se with this action, making monetary sanctions of little use, and given the early 19 stage of these proceedings, the preclusion of evidence or witnesses is not available. However, 20 inasmuch as the dismissal being considered in this case is without prejudice, the Court is stopping 21 short of issuing the harshest possible sanction of dismissal with prejudice. 22 Finally, because public policy favors disposition on the merits, this factor will always 23 weigh against dismissal. Id. at 643. 24 III. 25 26 RECOMMENDATIONS AND CONCLUSION Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff’s failure to obey the court’s order of March 31, 2023. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before 2 1 June 9, 2023, Plaintiff may file written objections with the court. Such a document should be 2 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 3 advised that failure to file objections within the specified time may result in the waiver of rights 4 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 5 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 9 IT IS SO ORDERED. Dated: May 19, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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